The trial of the present accused commenced on 12 February 2020. The Crown case closed on 5 March 2020, following which the case for the accused commenced. The circumstances in which the case for the accused evolved are set out at length in a number of previous judgments and require no further elucidation. It is sufficient for present purposes to note that after four days of evidence in chief, the accused withdrew instructions from his counsel and solicitor and has conducted the balance of the trial himself, including addressing the jury.
The jury commenced their deliberations on 26 March 2020. Since that time, two days have been lost through sickness of individual jurors. In a previous judgment delivered at an early stage of the trial I exercised my discretion to discharge an individual member of the jury. [1] Since that time the jury has been constituted by 11 persons.
Earlier this morning the sheriff provided me with a medical certificate [2] which I was informed had been delivered to court by the member of the jury to whom it relates. It contains a certification in the following terms:
"[The member of the jury] was examined here on 6 April 2020. He has a medical condition and will be unfit for work/school from 6 April 2020 to 10 April 2020 inclusive."
The certificate, which is dated 6 April 2020, has been issued under the hand of Dr Divya Jammalamadaka. It will be evident from its terms that it is bereft of any detail of the nature of the "medical condition" from which the member of the jury is said to be suffering.
At my direction, the Sheriff made further enquiries of the member of the jury after the certificate was provided to me, and reported that:
1. the nature of the condition which had been diagnosed is a kidney infection;
2. a course of antibiotics has been prescribed; and
3. a referral has been issued for an ultrasound examination which I understand is to take place later today.
The member of the jury indicated to the Sheriff that he expected that he would be in a position to resume his duties tomorrow. That is obviously not the opinion of the medical practitioner who examined him, who issued the certificate and who, I infer, prescribed the antibiotics and referred him for an ultrasound examination.
In those circumstances the Crown has made application pursuant to s 53B of the Jury Act 1977 (NSW) ("the Act") for the discharge of the member of the jury. In the event that I exercise any discretion and make that order, the Crown has further sought that I make an order pursuant to s 53C of the Act that the jury continue to deliberate as a jury of 10.
In advancing submissions in support of these applications the Crown pointed to the history of these proceedings, including the fact that this is the third trial of the accused. The Crown submitted that in light of the certificate, if the member of the jury were not discharged it would mean (subject to any other course which might be taken) that the jury deliberations would have to cease for a week, bearing in mind that the Easter holiday period commences on Friday 10 April 2020. The Crown also made reference to the current Coronavirus pandemic which is impacting on the community, and submitted that all of those factors weighed heavily in favour of exercising the discretion to discharge the individual member of the jury.
The Crown further submitted that if I made an order discharging the juror I would not conclude that continuing with a jury of 10 would, in terms of s 53C of the Act, give rise to a risk of a substantial miscarriage of justice. In that regard the Crown pointed, in particular, to the fact that deliberations had been continuing for some time and that all that remained was the continuing of those deliberations to their finality.
The accused, who as I have indicated is now self-represented, opposed both applications and submitted that I should discharge the entire jury at this point. The accused submitted that his trial had already been unfair. As I understood it, the effect of his submission was that such unfairness (which I should say I do not accept) would be exacerbated if the Crown's applications were granted. The accused also submitted that there were "meant to be 12 jurors" and that this was a further factor weighing against the granting of the Crown's applications. As to that last submission it should simply be noted that whilst a trial commences with a jury of 12, the provisions of the Act necessarily contemplate that in certain circumstances, and at the discretion of the trial judge, that number can be reduced.
Section 53B of the Act is in the following terms:
53B Discretionary discharge of individual juror
The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if--
(a) the juror (though able to discharge the duties of a juror) has, in the judge's or coroner's opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or
(b) it appears to the court or coroner (from the juror's own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror's familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or
(c) a juror refuses to take part in the jury's deliberations, or
(d) it appears to the court or coroner that, for any other reason affecting the juror's ability to perform the functions of a juror, the juror should not continue to act as a juror.
Although the Crown's application was brought under s 53B(a) it would be open to conclude that the circumstances also fall within s 53B(d). Irrespective of that, the simple fact of the matter is that on the evidence before me, the member of the jury in question is ill and will remain unfit to perform his functions for at least the balance of this week. In those circumstances it is my view that the discretion under s 53B ought be exercised and accordingly I propose to make an order discharging that individual member.
The question of whether or not the trial should continue with a jury of 10 is a separate question involving the exercise of a separate discretion. [3] That discretion is to be exercised according to the terms of s 53C of the Act which is as follows:
53C Discretion to continue trial or coronial inquest or discharge whole jury
(1) If a juror dies, or the court or coroner discharges a juror in the course of a trial or coronial inquest, the court or coroner must--
(a) discharge the jury if the court or coroner is of the opinion that to continue the trial or coronial inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice, or
(b) if of the opinion that there is no such risk and subject to section 22, order that the trial or coronial inquest continue with a reduced number of jurors.
(2) A court or coroner that discharges a jury under subsection (1) (a) may stay the proceedings on such terms as the court or coroner thinks fit if a party gives notice of an intention to lodge an application for leave to appeal for review of the decision under section 5G of the Criminal Appeal Act 1912 .
(3) Where a jury in civil proceedings is discharged under this section, the proceedings may, without any new process for that purpose, be set down for trial either at the same or any subsequent sittings, as the court may order.
The central consideration is whether or not the continuation of the trial with the remaining 10 jurors would give rise to the risk of a substantial miscarriage of justice. It is necessary to emphasise that the section speaks of a risk, and that the term "miscarriage of justice" is qualified by the use of the word "substantial".
There is nothing which leads me to the view that to continue the trial with the remaining 10 members of the jury would give rise to the risk of a substantial miscarriage of justice. The evidence has long concluded and, as the Crown pointed out, the deliberations have been ongoing for some period of time. The only thing remaining is the completion of those deliberations.
Accordingly, for those reasons I make the following orders:
1. Pursuant to s 53B of the Jury Act 1977 juror number 00290038 is discharged.
2. I direct the Sheriff to inform that member of the jury immediately of my order.
3. Pursuant to s 53C of the Jury Act 1977 I order that the trial continue with the remaining 10 members of the jury.
[2]
Endnotes
R v WE (No 11) [2020] NSWSC 92.
MFI 62.
Wu v R (1999) 199 CLR 99; [1999] HCA 52.
[3]
Amendments
15 April 2020 - Correction to footnote 1.
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Decision last updated: 15 April 2020